NCAZA, NGUBANE VOW TO SPILL THE BEANS

MBABANE – “We will tell the truth, the whole truth and nothing but the truth.” Murder suspects turned accomplice witnesses, Mbusi ‘Ncaza’ Nkosi and Siphiwo Tata Ngubane, have promised to tell it all in their evidence during the trial of Sipho Shongwe regarding the murder of prominent businessman Victor Gamedze.

An accomplice witness is a person who is a participant in the alleged crime either before, during or after its commission.
The much anticipated evidence of the two South African nationals is likely to be heard in October, according to the Crown. Shongwe stands accused of the murder of the astute businessman and football administrator, Gamedze.

The undertaking by the two, who are currently incarcerated in the Republic of South Africa, was disclosed by their lawyer, Advocate Jacques Nel.
“They elected to freely and voluntarily give evidence for the prosecution of the Kingdom of Eswatini. Naturally they are aware that if they meet the requirements of Section 234 of the Criminal Procedure and Evidence Act in particular, of course, in relation to their evidence being fully reliable and absolutely truthful, they should, at the instance of the trial judge, obtain indemnity for prosecution and that would be his decision alone,”  said the duo’s legal representative.

In his affidavit filed last week, Nel stated that as an advocate at Legal Aid in the Republic of South Africa, he was representing Nkosi and Ngubane.
He informed the court that he had all the time represented them.

According to Nel, the two had not been improperly incentivised in any way to testify in Shongwe’s murder trial but they did it out of their own volition.
The advocate submitted that the provisions of Section 234 of the Criminal Procedure and Evidence Act of Eswatini were clearly explained to the duo of Nkosi and Ngubane.

Section 234(1) of the Act provides as follows: “If any person who to the knowledge of the public prosecutor has been an accomplice, either as principal or accessory, in the commission of any offence alleged in the indictment or summons, or the subject of a preparatory examination, is produced as a witness by and on behalf of such public prosecutor and submit to be sworn as a witness, and fully answers to the satisfaction of the court all lawful questions put to him while under examination, he shall thereby be absolutely freed and discharged from all liability to prosecution for such offence.”

The Act further provides that no accomplice produced as a witness by the Crown shall in any case be bound or legally compellable to answer any question whereby he might incriminate himself in respect of any offence alleged in the indictment .
According to the advocate, the aforementioned provisions were very similar to those of Section 204 of the South African Criminal Procedure Act No.51 of 1977 which he was fully acquainted with.

“In a full, frank and totally balanced manner, it was explained to them that all that was necessary from them was for them to tell the truth, the whole truth and nothing but the truth insofar as they were involved in the crimes set forth in the indictment in which Shongwe is charged with murder,” submitted Advocate Nel.
According to the advocate, Ngubane and Nkosi understood the full paremeters and ramifications of Section 234 of the Criminal Procedure and Evidence Act of Eswatini.

Advocate Nel further pointed out that the provision and procedure was common to such provisions in the South African Criminal Law and Procedure.  He said he knew of a similar provision in many countries.

Incentivisation

“This does not and did not in the instance of my clients constitute ‘incentivisation’. As an officer of the court, I myself would never have allowed my clients or indeed myself to be involved in anything untoward in any way whatsoever,” he argued
The Crown has filed an application wherein it is seeking an order allowing the duo to testify through remote participation. 

Remote participation is when a witness in another member State gives or presents his evidence through utilisation of Audio Visual links (AVL)
The application is, however, being met with resistance from Shongwe. Shongwe argued that, the truthfulness of evidence was better tested when the person giving evidence was personally questioned about it.

He further contended that human experience showed that it was easier to lie about someone behind his back than to do so to his face. Shongwe’s trial has begun at the High Court and so far the Crown has led 24 witnesses.  
Out of the 24 witnesses who have been paraded by the Crown so far, only four made mention of Shongwe’s name. Nkosi and Ngubane form a part of the eight remaining State witnesses to testify.

The trial will proceed on September 4 and 5, 2019. Other dates that have been set for the matter are September 21-25, 2019.

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